Wednesday, October 14, 2015

Yesterday the U.S. 3rd Circuit Court of Appeals in Hassan v. City of New York, (3d Cir., Oct. 13, 2015), reversed a New Jersey federal district court (see prior posting) and held that Muslim plaintiffs adequately stated free exercise and equal protection claims challenging the NYPD's Muslim surveillance program. Summarizing its holding, the court in an opinion by Judge Ambro said:

In its narrowest form, this appeal raises two questions: Do Plaintiffs—themselves allegedly subject to a discriminatory surveillance program—have standing to sue in federal court to vindicate their religious-liberty and equal protection rights? If so, ..., have they stated valid claims under the First and Fourteenth Amendments to our Constitution? Both of these questions, which we answer yes, seem straightforward enough. Lurking beneath the surface however, are questions about equality, religious liberty, the role of courts in safeguarding our Constitution, and the protection of our civil liberties and rights equally during wartime and in peace.

In concluding that plaintiffs have standing, the court said in part:

The City ... argues that Plaintiffs have suffered no injury-in-fact because it has not overtly condemned the Muslim religion.... This argument does not stand the test of time. Our Nation’s history teaches the uncomfortable lesson that those not on discrimination’s receiving end can all too easily gloss over the “badge of inferiority” inflicted by unequal treatment itself. Closing our eyes to the real and ascertainable harms of discrimination inevitably leads to morning-after regret.

Reflecting on history's lessons, the court said:

What occurs here in one guise is not new. We have been down similar roads before. Jewish-Americans during the Red Scare, African-Americans during the Civil Rights Movement, and Japanese-Americans during World War II are examples that readily spring to mind. We are left to wonder why we cannot see with foresight what we see so clearly with hindsight—that “[l]oyalty is a matter of the heart and mind[,] not race, creed, or color...

Judge Roth filed a short concurring opinion on the issue of level of scrutiny that should be applied. She said in part:

I differ from the majority in its failure to determine whether “intermediate scrutiny” or “strict scrutiny” applies here....

In my opinion, “intermediate scrutiny” is appropriate here. I say this because “intermediate scrutiny” is the level applied in gender discrimination cases. I have the immutable characteristic of being a woman. I am happy with this condition, but during my 80 years on this earth, it has caused me at times to suffer gender discrimination. My remedy now for any future gender discrimination would be reviewed with“intermediate scrutiny.” For that reason, I cannot endorse a level of scrutiny in other types of discrimination cases that would be stricter than the level which would apply to discrimination against me as a woman.